Photography, Rights, Media

[Image: From the amazing Superheroes series by photographer Gregg Segal].

As many readers will no doubt know, the New York Times last week sent a “cease and desist” letter to Apartment Therapy, demanding that AT stop posting New York Times proprietary material on their website. Though the story has since undergone a few less confrontational developments – i.e. Apartment Therapy “reached both the NYTimes legal and marketing [departments] on Friday and they called off their take down notice pending our initial conversation” – the issue is still a very valid one, and it cuts to the heart of many financial problems now facing both print and online media. As but one example, it has always struck me as somewhat economically lopsided that in order for Dwell to run a photograph in the magazine, we have to pay the photographer a not inconsiderable use fee; but that I, as BLDGBLOG, can simply post that photograph – or Dezeen can post it, or materialicious, or Apartment Therapy – and, at least for now, no one has to pay a cent. (See further thoughts on this sentence in the comment thread, below).In this business model, magazines like Dwell and Wallpaper – or the New York Times – become a kind of unacknowledged production budget for architecture blogs (this site included). Metropolis pays for a photographer to fly to, say, Chicago or Melbourne or Eagle Rock… and an architecture blog then gets free photographs to post on their website, from which they can earn a constant stream of advertising revenue. From the perspective of an architecture and design blogger, it can’t help but feel a bit like the easy money days of the derivatives market: you wait till someone else pays for a photographer to document something, and then you jump in and skim ad revenue off of that transaction. The value of your website is derived value; if the magazine photography economy were to collapse, so would your third-party ability to extract revenue from it. While I was Senior Editor at Dwell, this hit some particularly surreal notes, such as when an architecture blogger – whose entire visual content has been bought and paid for by other people – emailed me to accuse Dwell of stealing from architecture blogs because we had run images (at no small expense to us) of houses that once appeared on that person’s website. In any case, my point here is not to argue, regressively, from the standpoint of magazines (after all, BLDGBLOG has been around for 5 years, hosting other people’s photographs) or to advance a kind of 1990s-era model of intellectual property, but to point out that this conversation is far from resolved – and that I’m thus particularly excited to announce that Postopolis! LA will include an entire panel about this very subject. Catherine Ledner, Dave Lauridsen, Gregg Segal, Misha Gravenor, and Tom Fowlks, professional photographers who have worked for the likes of National Geographic, Wired, Newsweek, Dwell, Popular Science, Esquire, the New York Times Magazine, and countless others, will be joining us on Saturday, April 4, to talk about the financial and/or reputational pros and cons of blogs, magazines, online portfolios, Flickr accounts, and so on.It’s interesting, for instance, in this context, that even mundane technical questions – such as whether to host your work online via a Flash website (which prevents bloggers from downloading your work) – are actually legally motivated decisions made to protect the financial integrity of your portfolio, not aesthetic or stylistic choices at all. So what do these photographers think of Flash as a form of self-protection? Or of seeing their work on architecture blogs – or, for that matter, of never seeing their work on architecture blogs? Does this result in more (or fewer) paid commissions? What is the ideal balance here between exposure and financial compensation?The questions are innumerable, and come as part and parcel of the ongoing implosion of the publishing industry, with newspapers and magazines folding (or laying off staff) left and right, and with no realistic new business model yet taking shape. Watch for this panel coming up on the evening on Saturday, April 4. It will take place in the context of an entire day themed about the future of media, with editors-in-chief, bloggers, journalists, and many more on hand to discuss the changing industrial landscape. By the way, the complete Postopolis! LA schedule will be announced shortly – so stay tuned!

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16 thoughts on “Photography, Rights, Media”

I’ve been a reader of yours for a long time, and this post really speaks to something that is happening in the digital media world right now. If the newspapers fold, what would blogs and online magazines look like? Without a hefty budget (which most bloggers just don’t have access to), the gorgeous photography that is “stolen” or “borrowed” from newspapers and print magazines just will not be there.

There is a piece over at FLYP Media right now about the death of newspapers and how the online community should react. Basically, even the editors at (recent) media moguls like the Daily Beast are mourning the loss of free, quality journalism to link to and comment on. Check it out, I think it can help this conversation: “Stop the Presses”

Hi Geoff – I’m starting a photography business right now (great timing economically, huh?), and have a couple of observations about this topic.

As photographers, the quality of our photographs is what we are selling to our customers.

So…is the photographer ultimately well-served by putting fussy Flash-based websites together, that make it difficult to navigate?

This is especially confused by the fact that Flash cannot prevent someone from taking a screen capture of an image – which is trivial to do on most computers.

Similarly, is the photographer gaining anything by making all of his online photos blurry and/or small? Or by putting watermarks through the middle of the images? Do these methods of discouraging casual use also devalue the perceived quality of the photograph and the photographer? Will doing this negatively affect future bookings?

For now, I’m keeping my website flash and watermark free, but that might not be forever.

I have the feeling that, like the newspaper and music industries, the photography industry is in the middle of severe upheaval where business models that have worked for decades may no longer work.

Well, photographers will have to face the fact that technology has made it more or less impossible to artificially maintain scarcity without being a bastard (and both C&Ds and flash websites equate bastardy, IMHO). As do writers, coders and thinkers and pretty much anyone doing non-spatio-temporal creative work. New business models await! Kevin Kelly has some interesting thoughts about this in his artice Better Than Free.

Anyone stupid enough to believe Flash will limit copying of their files earns no sympathy from me. It is myopic to break web standards and accessibility to add 1 or 2 seconds to the time necessary to grab the source image. Not even screenshots; there are easier ways to snag the actual file and not just a screen representation.

But it’s irrelevant. The trends point clearly towards open source everything, the work of hobbyists is good enough and then some. The hobbyist market drives fees down low enough that no one can make a living doing it full time.

Anyone stupid enough to believe Flash will limit copying of their files earns no sympathy from me.

Let me be 100% clear here, then, and say that none of these photographers have claimed this (to my knowledge); this is pure speculation on my own part as to why someone might choose Flash over what I might call blog-friendly HTML.

On the one hand, I think it’s not fair to lift commissioned photos without permission or transaction. On the other hand, it seems like there should be some fair use of photos below a certain quality and/or size. In the second case, the photographer, assuming they are credited, gets circulation while their product is seemingly not compromised. But sounds like this panel is very necessary!

Apartment Therapy is, with twelve full time staff positions, a 22 page media-kit and a fully planned year calender, close to an ordinary publishing platform, which just happens to look like a blog. No wonder the NYT is irritated. I think scale does matter in this discussion: when does a blog stop being a one-man enterprise run sort of on the side and no threat to the bigger players? But then, it’s hard to tell. Two artists were once bullied by Philip Morris for showing maybe 10% of one of their cigaret packages in an online web project about taxes levied on smoking. You’d be surpised that the PM lawyers would even take the time to bother with such small fry, but they do.

To me, it comes down to fair use and acknowledgment. Blogs that reuse photos without direct permission should at least have an acknowledgment line and provide content owners with notification their image has been used or the ability to contact the site owner to have it taken down. Licenses should be respected.

I have a number of photos on flickr, both of the snapshot variety and as a non-professional photographer, and have had bloggers contact me to ask if they can use my image, even though some of them were public domain or Creative Commons-licensed in a way that they would only need attribution. If someone writing their own blog can contact me, why couldn’t a commercial enterprise like Apartment Therapy?

Photographers, writers, and publications are all facing the same situation. As a photographer, the perceived value of my work has dropped as online publications do not (at least now) feel the need to pay for photography. They also often do not need to do much of their own research or writing, as they can piggy back off of other publications that pay for that stuff. Consequently the rates for photography, and writing are going down, and print publications with their high overheads are hurting, and end up cutting their rates for content as well.

As the industry changes, new revenue models will have to emerge in order to support the creation of quality content. We all need to make a living, and while I will always do my personal work, I’ll only be able to do so much low paying editorial, and commercial work. At some point, photographers and writers start to change careers in order to pay the bills. I personally do as much, or more, web development as I do photography these days. Web development pays better, and is easier, to be honest, but photography is more fun.

I’m a little surprised – you write as if bloggers *are* entitled to “borrow” photographs and link as they have been doing. Does copyright law actually speak to this? Does the status quo (i.e. major publishers’ actions) speak to it?

I just assumed it was always against “copyright law,” but that bloggers did in anyways because they were smaller.

Print media or online media, don’t they both have to follow the same copyright rules? Who is it that actually “officially” differentiates the law (or thought they did)?

I had no idea that bloggers were allowed to do this – I had always assumed I couldn’t because of copyright. Now I know – the sky’s the limit!

I am surprised to see a former editor of a well recognized magazine claim that blogs have the right to use copyright protected images without permission.

It is my understanding (and that of my copyright lawyer) that this is simply wrong and could cost the blogger a great deal of money in a lawsuit, should you run up against a photographer or publisher such as the New York Times, who owns the copyright and who does not agree with you! (Statutory damages for the unlicensed use of copyright registered images runs over $100,000 per violation at this time.)

Of course the copyright owner may feel that they are happy to have the exposure on your website, but it is up to THEM to decide BEFORE you use the image.

The use of an image on a blog may be seen as advertising by the copyright owner, or it may be seen as diluting the value of the image.

If they view it as diluting the value of the image, they have the right to send the blogger an invoice for the use, and if it is ignored take them to court for copyright abuse and sue for those sizable statutory damages.

Apologies for not having joined this comment thread, earlier – but several thoughts here.

First, re: this sentence: “in order for Dwell to run a photograph in the magazine, we have to pay the photographer a not inconsiderable use fee; but that I, as BLDGBLOG, can simply post that photograph – or Dezeen can post it, or materialicious, or Apartment Therapy – and, at least for now, no one has to pay a cent.”

That was never meant as a statement of legal fact or copyright law; it was meant simply as a realistic description of the way things are right now in the two different media (print and online). It wasn’t meant to read as my advocacy for bloggers to use any image whenever and wherever they life, without legal or financial regard for the interests of the photographer and/or artist.

Where “fair use” of an image begins and ends, however, in these two very different forms of publication is something that I don’t think anyone yet understands. To my mind, posting a credited, low-resolution image no wider than 475px (i.e. BLDGBLOG’s image dimensions) is fair use – but there have been times when I’ve been asked to take an image down or to re-caption it more accurately, with a link to the artist’s gallery and so on, and these have, as far as I can tell, only once led to bad blood between myself and the artist.

This only grows more complicated. When I quote, say, novelist J.G. Ballard, I am showing people how good a writer he is by using his own words as evidence; however, if I want to “quote” a photographer and use an image to show other people how good that photographer is, you come up on the question of fair use. Is it “fair use” for me to tell everyone how good you are and to use one of your images as proof? This is a genuine question. I can “quote” text, so how do I “quote” an image?

Also, my point in describing the difference between magazines, who pay for the right to print a photograph, and a blogger, who simply posts that same image for free, was a deliberate over-simplification of the situation, and one that I hoped would illustrate how financially lopsided the whole situation is. It wasn’t me “claim[ing] that blogs have the right to use copyright protected images without permission.” But this is all an important conversation to have – because, at the very least, if design magazines today had the same ability as, for instance, Apartment Therapy to post other people’s work, uncredited and unpaid for, for years and years in a row, then design magazines would be in a substantially different financial situation today and they also would look very, very different.

Finally, anonymous writes that artists “have the right to send the blogger an invoice for the use, and if it is ignored take them to court for copyright abuse and sue for those sizable statutory damages.” But I have never seen legal justification for anything like this, nor has there been any precedent for this sort of behavior; similarly, I have never seen legal evidence that I can “invoice” other blogs because they’ve quoted BLDGBLOG, and I can’t “invoice” the New York Times because they quoted me in print.

What is legally recognized in my experience – and what works so much faster – are cease and desist letters, i.e. letters asking you to take down the offending content.

Not to sound naive, but over the last year I have witnessed enough to convince me that copyright law as it stands is an outdated system of content 'protection' (I almost want to say management instead, in the sense that copyright laws provide a framework for managing the use of 'property' covered by said laws). Remember, these problems started with file sharing and are simply now infiltrating the world of media on a larger scale.

The simple fact is, media outlets of all sorts need to recognize that in today's world of information excess, the idea of 'revenue models' itself has to be re-addressed. I'm an architecture student with no background in economics, but in the context of the current global economic meltdown I see the future in open-source business models, especially those where turning a profit is not a primary goal. I don't even know how Architecture for Humanity makes money, though I'm sure that Cameron Sinclair has done well enough for himself over the last 10 years… but I know that they have accomplished amazing things, and moreover that my (anyone's for that matter) participation in their venture is always welcome.

The children of this decade will not understand why a journalist has to travel somewhere to report news to a remote newspaper when someone on location is covering the events on their blog anyways. The kind of journalism that is made possible by the blogosphere escapes the bias of the editing room, leaving only those of the journalist and the reader. Maybe I wouldn't need to do extensive research on the events that took place in South Ossetia last year if someone from the region was able to provide coverage through the web. Instead I'm left to judge the biases of both the Western and Russian media outlets, both of which are huge propaganda machines (at least the russian journalists go around interviewing locals!)

The case with photography is similar, but slightly more complicated. I'm glad to catch Dan Hill's conclusion from the panel on this subject from postopolis: "tying your business model to advertising is fundamentally flawed" through the twitter notes. (as a sidenote: WHOA twitter as more than something utterly annoying! impressive) That's a statement I couldn't disagree with. If this discussion is going to continue, I'd like to bring a consideration of 'image blogs' to the table. These are wonderful for the various ways of collecting and filtering visual information on the web. I don't even know what I'd do with myself without http://ffffound.com (which often pulls images from bldgblog among countless others). An example of more subjectively selected image content is This ISN'T happiness (http://nevver.tumblr.com/), but there are many others.

These websites almost always have a link back to the origin of the image, whether it's a flickr album, a web gallery, or a news story – the whole point is to provide the option to go to the origin for more, while focusing on something more preferential through a selection of samples. I'd go as far as to argue that all image blogs do is 'quote' photographs, in precisely the sense that you're talking about it, Geoff.